Earlier this morning I was listening to Pete Williams on MSNBC saying there’s basically precedent on both sides for what the Republicans are now trying to do: block the President from making a Supreme Court nomination at the beginning of the last year of his term, and that the GOP has plenty of precedent on its side. That is frankly an astonishing claim, with virtually no history to support it. It is also a sobering example of how successful Republicans are usually and are now at working the mainstream media to normalize what are in fact unprecedented actions.
However, I think, to frame this conversation, it is important to note a critical point: it is really only in the last 50 years and even in the last 40 years that Supreme Court nominations have had any relationship to what we are familiar with today. Basically, most people simply didn’t care that much as long as the nominee was broadly qualified in judicial terms. In one notable or even notorious example, Justice Brennan, who turned out to be an extremely influential liberal Justice, was nominated in a recess appointment in late 1956. When he came up for a hearing, it went on for only a few hours over two days. The questions focused mainly on whether he, as a Catholic, could be loyalty to the constitution rather than the Pope and then a series of questions from Senator Joe McCarthy about American Communists.
The upshot reality here is one that undermines the whole notion of precedents on either side. The fact is our modern concept of Supreme Court confirmation hearings and the huge importance they play to the two parties is largely a product of the last half century. The simple truth is that Supreme Court vacancies do not happen very often and in the nature of things many fewer happen in the last year of a president’s term. But again, the simple reality. It’s never been suggested before, ever, that a sitting president loses his right to make judicial appointments at the beginning of the last year of his four year term. Never.
The last three or four months prior to an election is arguable. But August is simply not remotely comparable to February. This is obvious. The last time there has been a vacancy of the length the GOP now proposes was more than 170 years ago. And even that was in the face of repeated rejections of nominees – not a flat refusal to entertain nominations – and with a President whose very legitimacy was under something of a cloud. By any honest analysis, none of the ‘precedents’ Republicans have whipped up in the last three days really speak to the present issue at all. As one reader noted, is there any other example in all of American history of a president deferring a key decision or prerogative to his successor except during the lame duck period between the election and inauguration of the next President. The answer: no, never. We have one president at a time.